Self-defense or excessive force?

TEMECULA - After an off-duty Costa Mesa police officer shot and
killed a Temecula man during a fight in Old Town earlier this
month, he told homicide investigators he believed his life was in
danger and was acting in self-defense.

But some people question if the shooting was necessary. On a
busy street in Old Town Temecula on a Saturday night with numerous
people not far away, did the off-duty officer have reason to fear
for his life? The man who was fatally shot wasn't carrying a
weapon, so did the officer really need to fire shots to protect
himself?

Those are the types of questions investigators are trying to
find answers to before they make a recommendation to prosecutors on
whether charges should be filed.

Riverside County Assistant District Attorney Sara Danville says
a key element of determining whether any killing was an act of
self-defense revolves around whether the victim believed he or she
was in imminent danger.

"Peril must exist," Danville said. "It has to be a situation in
which the person believes, 'With what I know right now, if I don't
act, I'm going to die or suffer great bodily injury.'"

State law makes it clear that a person can't use more force than
is reasonably necessary to defend against imminent danger. So
Danville said prosecutors also analyze the level of force that was
used.

"We look at all the circumstances surrounding the event to help
us determine the reasonableness of the killer and the killer's
actions," she said.

Homicide investigators say that witnesses who were not involved
in the March 8 fight in Old Town told them the off-duty officer was
sitting in a chair on Main Street when, unprovoked, he was suddenly
hit from behind with a metal chair and then attacked.

According to investigators, witnesses also said the off-duty
officer identified himself as a police officer, but the attack
continued. It was then that he pulled his weapon and fired five
shots.

Shaun Adam Vilan, 30, died after being shot in the chest and
arm. A man with Vilan that night, Taylor Willis, 22, of Temecula,
was shot in the thigh and survived.

The off-duty officer, whose identity has not been released by
Costa Mesa police, was hospitalized and received about a half-dozen
staples in his head, authorities said.

Vilan's family has previously said they believe Vilan was
"executed" and call homicide investigators' account of what
happened "lies" that his mother has attributed to police officers
covering for one of their own.

Investigators will draw their own conclusions as to whether the
off-duty officer used excessive force or if he truly had reason to
fear for his life - which would make the shooting justifiable in
the eyes of the law.

In short, state law boils it down to whether a "reasonable
person" would have reacted the same way if faced with the same
threat.

"It's not just this officer's thought process that must be
considered, but what would a reasonable person have done in that
situation," said Professor Charles Whitebread of University of
Southern California's Gould School of Law.

In order to be justified in the use of deadly force, Whitebread
said, a person must believe that "the degree of the threat" against
him or her could be fatal.

Investigators have said the off-duty officer told them that,
after being hit with the metal chair, he felt dazed and had blood
flowing onto his face. His attackers then surrounded and continued
to beat him, he told investigators.

"Did he reasonably think that deadly force was being used
against him?" Whitebread asked. "The use of that metal chair could
certainly be a deadly weapon."

Laurie Levenson, a former federal prosecutor and now a professor
of law at Loyola Law School, agreed.

"It seems like that initial attack could be construed as deadly
force," she said.

Levenson said that if the alleged attackers had simply started
with a slap or even punching the off-duty officer in the stomach,
that in itself would not have been enough to justify the use of
deadly force.

While the investigation by the Riverside County sheriff's
Central Homicide Unit is still under way, statements from
uninvolved witnesses at this point appear to support the officer's
self-defense contention.

Homicide Lt. John Schultz said Tuesday that investigators have
interviewed about two dozen witnesses, including about 18 people
who were not with either the off-duty officer or Vilan.

There has been some question about whether the off-duty officer
was intoxicated when the fight broke out and he fired his
weapon.

Schultz said several independent witnesses interviewed,
including a bartender and a bouncer, told investigators they had no
reason to believe the off-duty officer was intoxicated.

Authorities have previously confirmed that a blood sample was
taken from the officer after the shooting, which presumably would
be tested to see how much, if any, alcohol was in his system.
Whether that test has been performed could not be confirmed because
Costa Mesa police did not return telephone calls this week.

Investigators were told the confrontation started when the
off-duty officer smacked the buttocks of a woman inside The Bank of
Mexican Food restaurant. Investigators say independent witnesses
told them the officer immediately apologized, saying he believed
the woman was part of the group with him at the restaurant.

Later, the officer went outside to get some air because he
wasn't feeling well, investigators have said. It was then that the
situation became violent.

Investigators have not determined who hit the off-duty officer
with the chair, Schultz said.

Two people who were at the restaurant with the officer walked
outside as the fight started, investigators said. One of them was
hit during the fight and both ran for safety before the shots were
fired, investigators say.

There were at least four or five others with Vilan during the
attack, Schultz said.

"(The officer) was hit by at least three people and, by all
witness accounts, the aggressor was Vilan," Schultz said.

Once homicide investigators complete their investigation, they
will forward their report to the district attorney's office with a
recommendation on whether criminal charges should be filed against
anyone involved. At that point, prosecutors will decide what, if
any, charges are appropriate.